State v Vuniqumu [2015] FJCA 114; AAU0044.2014 (19 June 2015)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 0044 OF 2014
[High Court Case No. HAC 334 of 2012]

BETWEEN:

THE STATE
Appellant

AND:

PITA VUNIQUMU
Respondent

Coram : Goundar JA
Counsel : Mr. Y. Prasad for the Appellant
Mr. S. Valenitabua for the Respondent

Date of Hearing : 11 June 2015
Date of Judgment : 19 June 2015

RULING

[1] The respondent was tried and acquitted on two counts of rape by the High Court at Suva. The State seeks leave to appeal against the acquittal pursuant to Section 21(2) of the Court of Appeal Act, Cap.12. The grounds of appeal are:

1. That the Learned Trial Judge erred in law and in fact in not providing cogent or sufficiently cogent reasons for differing with the Assessors opinion in respect of Section 237(4) of the Criminal Procedure Decree;
   
2. That the Learned trial Judge erred in law in causing material irregularities in the course of the Trial in:
   
   • (a) Reversing a Ruling under Section 130 of the Criminal Procedure Decree disallowing evidence of previous sexual history and then subsequently, in the midst of the Respondent's testimony, out of the Court's own Motion, reversing that Ruling.
     
   • (b) Causing the (medically qualified) Respondent, to give opinion evidence in response to questions by the Learned Trial Judge.
     
   • (c) Allowing the Respondent to be witness of fact in his own Trial and a witness of opinion in the absence of any application by the Respondent.
     
3. That the verdict cannot be supported having regard to the evidence.
   

[2] When the allegations arose, the complainant was a child. She was 13 years old. The respondent was a medical doctor. The complainant was his housemaid's daughter. They resided with him. At trial, the complainant gave evidence. Her evidence satisfied the charges of rape. The defence applied to cross-examine her on her past sexual history. The State objected. The trial judge ruled against the defence's application.

[3] The respondent gave evidence. He denied the allegations. He said the complainant came up with the allegations only after he had disciplined her when her school teachers told him that she had sexual inclination towards girls.

[4] Since the respondent was a medical doctor, he was allowed to give his opinion on other possible explanations for the complainant's ruptured hymen. After allowing the respondent to give expert opinion, the trial judge of his own motion recalled the complainant and cross-examined her on her past sexual history including her sexual orientation. The complainant denied having any sexual inclination towards girls.

[5] The assessors expressed unanimous opinion that the respondent was guilty on both counts of rape. The trial judge disagreed.

[6] In his judgment, the trial judge disbelieved the complainant's evidence. He said the complainant only cried out rape when the respondent assaulted her for being sexually inclined towards girls.

[7] I have considered the written submissions filed by both parties. In my judgment it could be argued that the complainant's past sexual history was wrongly admitted in evidence by the trial judge and the trial judge's reasons for not agreeing with the assessors' guilty opinions are not cogent.

Result

Leave is granted to the State to appeal against the respondent's acquittal.

..............................................
Hon. Mr. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Director of Public Prosecutions for Appellant
Messrs. Toganivalu & Valenitabua for Respondent